Mak v The Queen - [2015] QDC 188

DISTRICT COURT OF QUEENSLAND

CITATION:	Mak v The Queen [2015] QDC 188
PARTIES:	TSZ HONG MAK (applicant) v THE QUEEN (respondent)
FILE NO/S:	1242/12
DIVISION:	Criminal
PROCEEDING:	Section 590AA Criminal Code (Qld)
ORIGINATING COURT:	District Court at Queensland
DELIVERED ON:	31 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2015
JUDGE:	Farr SC DCJ
ORDER:	1. The application is dismissed. 2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial.
CATCHWORDS:	CRIMINAL LAW- Evidence - Application under s 590AA of the Criminal Code to exclude record of interview in the exercise of discretion - where the applicant submitted he was suffering from auditory hallucinations - where it was the applicant’s evidence that he heard a voice which he believed to be the voice of God telling him what to say. Criminal Code 1899 (Qld) Evidence Act 1977 (Qld) R v Arnott [2009] VSCA 299 R v Isequilla [1975] 1 WLR 716 R v Lee (1950) 82 CLR 133 R v Swaffield (1998) 192 CLR 159 R v W [1988] 2 Qd R 308 Sinclair v The King (1946) 73 CLR 316 State of Western Australia v Silich [2011] WASCA 135
COUNSEL:	D R Gates for the applicant M J Wilson for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions for the respondent

The application

This is an application pursuant to s 590AA of the Criminal Code (Qld) seeking a pre-trial ruling to exclude an interview, conducted by police officers Senior Constable Grant Hughes and Senior Constable Tony Heptinstall with the applicant on 11 July 2011, in the exercise of the judicial discretion.

The offence

The applicant is charged on the indictment with one count of possession of child exploitation material on 26 June 2011 pursuant to s 228D of the Criminal Code (Qld).

The facts

The allegations are:

(a) on 26 June 2011 the applicant attended the business “Computer Alliance” at Mount Gravatt at about 11.30 a.m. and checked in a black “Soprano” computer tower for repair (with associated hardware) due to it being inoperable;

(b) the applicant had purchased the computer system from that business in 2008;

(c) a computer repair technician, while working on the applicant’s computer, needed to clean a virus from the computer system and so had to check files that might need to be retained during a required repair operation;

(d) the technician opened a folder on the computer and located images alleged to be Child Exploitation Material;

(e) the computer was turned off and isolated, and subsequently the Queensland Police Service were advised;

(f) on 4 July 2011 police attended the business and seized the computer tower and the associated hardware components. A subsequent forensic examination conducted by police found classified Child Exploitation Material on a hard drive of the computer system;

(g) a search warrant was executed at the applicant’s residence on 11 July 2011 (nothing further was located), and the defendant was arrested and transported to police headquarters where an interview…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mak v The Queen

Details

AGLC: Mak v The Queen [2015] QDC 188
Case: [2015] QDC 188
Decision Date: 31 July 2015

CaseChat Overview and Summary

Mak was before the court as the applicant seeking to have a record of his police interview excluded from evidence in his upcoming trial. The applicant argued that the record should not be admitted as he was suffering from auditory hallucinations at the time of the interview, which he claimed were telling him what to say. The court was required to decide whether the record of the interview should be excluded under s 590AA of the Criminal Code, which allows for the exclusion of evidence if the court believes that it would be unfair to the defendant to admit it. The court needed to consider whether the applicant's auditory hallucinations met the criteria for exclusion and whether it was reasonable for the police to proceed with the interview despite the applicant's condition.

The court examined the criteria for exclusion under s 590AA of the Criminal Code and considered relevant case law, including R v Isequilla, R v Lee, R v Swaffield, and Sinclair v The King. The court found that the applicant's evidence of auditory hallucinations was not sufficient to meet the criteria for exclusion under s 590AA. The court noted that the applicant's evidence was not corroborated by any independent evidence and that the police had taken steps to ensure that the applicant understood the questions being asked and could provide informed answers. The court also noted that the applicant had not sought a medical examination or legal advice before the interview and that it was reasonable for the police to proceed with the interview despite the applicant's condition.

In light of the above, the court dismissed the applicant's application to exclude the record of the police interview. The court found that the record was admissible as evidence at the applicant's trial. The court noted that the applicant's auditory hallucinations did not render the interview unfair or unreliable, and that the police had taken reasonable steps to ensure that the applicant could provide informed answers. The court also noted that the applicant had not sought medical or legal assistance before the interview, and that it was not reasonable to expect the police to have done so on his behalf. The court concluded that the record of the police interview should be admitted as evidence at the applicant's trial.

Orders

Orders of the court

1. The application is dismissed.

2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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